Techko-X Sdn Bhd v 1. ) Gerry Teo Thiam Loong (BB-A52NCC-127-06/2024)

GERRY TEO THIAM LOONG (NO. K/P: 721109-14-5167) Berniaga di bawah nama dan gaya JG DESIGN & BUILD (NO. PENDAFTARAN: 201903288762 [003032837-K])

LAI MEI XIN (NO. K/P: 890723-14-5914) Berniaga di bawah nama dan gaya JG DESIGN & BUILD (NO. PENDAFTARAN: 201903288762 [003032837-K]) ... DEFENDAN-DEFENDAN

This is the grounds of the Court in allowing the Notice of Application dated 02.08.2024 under Enclosure 8.

Enclosure 8 pertains to Plaintiffs’ application for summary judgment [“this Application”] to be entered against the Defendants. The reliefs sought in this Application are reproduced as follows for easy reference:- “ 2

Defendan-Defendan secara bersesama atau berasingan membayar Jumlah Tertunggak sebanyak RM 194,791.00 kepada Plaintif;

Faedah pada kadar 5% setahun ke atas jumlah tertunggak yang dinyatakan di dalam perenggan (a) di atas dikira dari tarikh pemfailan writ ini sehingga tarikh penyelesaian penuh dan muktamad;

Kos tindakan ini;

Relif-relif lain yang difikir adil dan suaimanfaat oleh Mahkamah yang mulia ini.”

In this application, references are nade to the following cause papers:-

Writ of Summons dated 07.06.2024

Statement of Claim dated 24.05.2024

Notice of Application dated 02.08.2024 filed by Plaintiff

Affidavit in Support affirmed by Tee Boon Leong on 01.08.2024

Statement of Defence

Reply to Statement of Defence

Affidavit in Reply for First Defendant affirmed by Gerry Teo

Affidavit in Reply for Second Defendant affirmed by Lai Mei

Plaintiff is a private limited company in the business of supplying and selling workshop equipment.

The First and Second Defendants [collectively referred to as the “Defendants” hereinafter] are owners and partners of JG Design & Build (Registration No.: A. UNDISPUTED FACTS 3 201903288762 [003032837- K] engaged in the business of interior design [“the Partnership”].

At the request of 1st Defendant, Plaintiff supplied workshop equipment to the Defendants, and subsequently issued invoices to Defendants as follows:- No Date Invoice No.

1.

26.10.2023 23-0148 408,987.00 2.

09.11.2023 23-0155 5,340.00 3.

21.11.2023 23-0167 408,987.00 4.

19.12.2023 23-0188 129,590.00 5.

05.01.2024 23-0199 3,300 Total Amount: 956,204.00 [“the Invoices”]

The Defendants made partial payments to Plaintiff as follows:-

1.

26.10.2023 408,987.00 2.

27.11.2023 232,427.00 3.

14.12.2023 99,999.00 4.

26.03.2024 20,000.00 Total Amount: 761,413.00

However, there is an outstanding amount of RM194,791.00 [‘Outstanding Amount”] remains unpaid and not settled by the Defendants.

Plaintiff issued two (2) reminder letters dated 11.04.2024 and 19.04.2024 demanding the Outstanding Amount from the Defendants. However, the Defendants still failed/ 4 refused/ neglected to settle the Outstanding Amount despite the reminders.

Following that, there were letters exchanged between the solicitors for Plaintiff and solicitors for Defendants as follows:-

By letter dated 22.04.2024 from solicitors for Defendants, Messrs Kuek Ong & Associates [“Defendant’s Solicitors”] to solicitors for Plaintiff, Messrs Low & Partners [“Plaintiff’s Solicitors”], Defendants informed that:- “ i) Our Client has contracted with SR EV Automative Sdn Bhd for Interior Design and Renovation to which our Client sourced the supplies from your office. ii) However, our Client is shocked to discover that your office has without our Client’s knowledge, directly dealed with SR EV Automative Sdn Bhd and your office has later, request our Client to received payment for the supply made by your office directly to SR EV Automative Sdn. Bhd. iii) Without prejudice to our Client’s rights, we have our Client’s instruction to clarify that since your office has deal directly with SR EV Automative Sdn Bhd, our Client wishes to exclude its involvement, responsibilities and liabilities between the dealing between your office and SR EV Automative Sdn Bhd. iv) KINDLY TAKE NOTICE that our Client would not collect the contractual or invoice sum of RM 129,590.00 on behalf of your office from SR EV Automative

By letter dated 05.05.2024 from Plaintiff’s Solicitors to Defenfant’s Solicitors, Plaintiff demanded an outstanding sum of RM194,791.00 from the Defendants; 5

By letter dated 11.06.2024 from Defendant’s Solicitors to Plaintiff’s Solicitors, Defendants replied that:- “

(iii) However, Your Client has later without our Client’s knowledge, made direct deal with SR EV Automative Sdn Bhd and your Client has made necessary arrangement which direct to discuss and supplies to SR EV Automative. Your Client has breach the agreement with our Client and instead has created a whole new agreement between your Client and SR EV Automative.

(iv) Therefore, without prejudice to our Client’s right, we have our Client’s instruction to clarify that since your client has deal directly with SR EV Automotive Sdn Bhd without our Client’s knowledge. Our Client therefore no longer be related and is a third party to your Client’s new agreement with SR EV Automative and there our Client shall be exclude on its involvement, responsibilities and liabilities between the dealing between your office and SR EV Automative Sdn Bhd”.

Since no settlement by Defendants, on 07.06.2024, Plaintiff filed the present action against the Defendants.

To sum up, at all material times:-

Defendants had never disputed the Invoices and/or the Outstanding Sum prior to the present action;

Defendants, through the letters exchanged in Plaintiff’s Solicitors and D’s Solicitors, had never disputed the Invoices and/or the Outstanding Sum; and

Defendants had only raised one (1) issue, which is that Plaintiff has dealt with 6 SR EV (which is denied), and in any event, not relevant to the present action which will elaborate further.

This Application is made pursuant to Order 14 Rule 1 of the Rules of Court 2012 [“O14 R1 ROC12”] which provides that:-

‘Summary judgment’ was explained by the Court of Appeal in UNP Plywood Sdn Bhd v HSBC Bank Malaysia Bhd [2010] 5 MLJ 323 as a procedural device available for prompt and expeditious disposition of an action by a plaintiff or a counterclaim by a defendant, without a trial when there is no dispute as to the fact and law.

The Federal Court in Cempaka Finance Bhd v Ho Lai Ying & Anor [2006] 3 CLJ 547, enunciated the preliminary requirements for the application of O14 R12 ROC12 as follows:- C.

“Application by plaintiff for summary judgment (O. 14, r.1)

Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has entered appearance in the action, the plaintiff may, on the ground that the defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part thereof except as to the amount of any damages claimed, apply to the Court for judgement against the defendant.” 7

The Federal Court case of Cempaka Finance Bhd v Ho Lai Ying & Anor (supra) was cited in the High Court case of Kueen Lai Properties Sdn Bhd v Ace Credit (M) Sdn Bhd & Ors [2023] MLJU 2014, where the High Court held the following:-

Similarly, the High Court in AmInvestment Bank Bhd v Nep Holdings (M) Bhd [2014] 8 MLJ 271, held as follows:- “[12] In an application for summary judgment, this court is guided by the principles laid down in National Company for Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300; [1984] 1 CLJ (Rep) 283; [1984] 2 CLJ 220, where it was stated by the Federal Court as follows: … We think it appropriate to remind ourselves once again that in every application under O 14, the first considerations are (a) whether the case comes within the order and (b) whether [2006] MLJ 685; [2006] 3 CLJ 544; [2007] 1 AMR 525, to be prima facie entitled to summary judgment, the Plaintiff has to fulfil the following preliminary requirements:

17.1 the statement of claim must have been served on the Defendants;

17.2 the Defendants must have entered an appearance; and 17.3 the affidavit-in-support of the application must comply with the requirements of Order 14 rule 2 of the Rules of Court 2012.” “For the purpose on an application under Order 14, the preliminary requirements are:

that the defendant must have entered an appearance;

(ii) that the statement of claim must have been served on the defendant; and

(iii) that the affidavit in support must comply with r. 2 of O. 14 RHC in that it must verify the facts on which the claim is based and must state the deponent’s belief that there is no defence to the claim.” “[17] It is trite law following National Company For Foreign Trade v. Kayu Raya Sdn. Bhd [1984] 2 MLJ 300; [1984] 2 CLJ 220 and Cempaka Finance Bhd v Ho Lai Ying & Anor 8 the plaintiff has satisfied the preliminary requirements for proceeding under O 14. For the purposes of an application under O 14, the preliminary requirements:

the defendant must have entered an appearance;

(ii) the statement of claim must have been served on the defendant;

(iii) the affidavit in support of the application must comply with the requirements of r 2 of the O 14. … If the plaintiff fails to satisfy either of these considerations, the summons may be dismissed. If however, these considerations are satisfied, the plaintiff will have established a prima facie case and he becomes entitled to judgment. This burden then shifts to the defendant to satisfy the court why judgment should not be given against him … [13] In the present case, the plaintiff had satisfied the preliminary requirements as laid down in the Kayu Raya’s case that is:

the defendant has entered appearance;

the statement of claim have been served on been served on the defendant; and

the affidavit in support is in compliance with O 14 r 2 of the ROC 2012. Therefore, the burden is then shifted to the defendant to satisfy the court why judgment should not be entered against it. [14] In Bank Negara Malaysia v Mohd Ismail [1992] 1 MLJ 400; [1992] 1 CLJ (Rep) 14; [1992] 1 CLJ 627 the Supreme Court held that the duty of a judge does not end as soon as the fact is asserted by one party, or denied or disputed by the other on affidavit. The judge has a duty to reject such assertion or denial if such assertion or denial is equivocal or lacking in precision or is inconsistent with undisputed contemporary documents or is inherently improbable. The court will have to identify the issues of fact or law and to determine whether they are triable.

Plaintiff has satisfied the preliminary requirements of O14 R1 ROC12 through the following: - 9

Plaintiff has served the Writ of Summons dated 07.06.2024 and Statement of Claim dated 24.05.2024 to the Defendants;

Defendants have entered appearance via the filing of the Memorandum of

the Affidavit in Support affirmed by Tee Boon Leong on 01.08.2024 has exhibited the relevant documents verifying the facts on which the claim is based on, and the deponent have stated his belief that there is no defence to the claim and that there is no triable issue (Enclosure 7).

In the Federal Court case of Cempaka Finance (supra), it was further held that once the preliminary requirements of O14 R1 ROC12 have been satisfied, the burden then shifts to Defendants to raise a triable issue. The relevant portion of judgment is reproduced herewith:-

The High Court in Eng Say Kuang v Hong Leong Bank Bhd [2008] MLJU 38 followed the principles in Cempaka Finance (supra) whereby the only issue before the Court hearing a Summary Judgment application is whether there is any triable issue meriting full trial. “Once those conditions are fulfilled, the burden then shifts to the defendant to raise triable issues. The law on this is trite (National Company for Foreign Trade v. Kayu Raya Sdn Bhd).” 10

The Supreme Court case of Bank Negara Malaysia v Mohd. Ismail Ali Johor & Ors [1992] 1 CLJ (Rep) is also note-worth because the Supreme Court observed as follows:-

To sum up, once Plaintiff has satisfied the preliminary requirements under O14 R1 ROC12, the burden shifts to Defendants to show, based on affidavit evidence, not only a mere issue, but an issue that is triable. And with due respect, this is the only issue which needs to be considered by this Honourable Court in determining this Application.

Against this Application, Defendants have raised the following objections through their affidavit under Enclosures 12 and 13 as follows:-

That the payment terms in the Invoices are not consistent with the payment terms stated in the Confirmation Order but did not exhibit the Confirmation Order nor explain what inconsistencies [“Allegation 1”];

That Defendants disputed the content of Invoice No. 23-0155 but did not provide any reasons, grounds nor evidence of the dispute [“Allegation 2”];

That P has dealt with a third-party company known as SR EV (being Defendants’ not triable must necessarily depend on the law arising from each case as disclosed in the affidavit evidence before the Court.” “In our view, basic to the application of all those legal proposition, is the requirement under O. 14 for the Court to be satisfied on affidavit evidence that the defence not only has raised an issue but also that the said issue is triable. The determination of whether an issue is or is 11 customer) directly and pursuant to the said dealings, Defendants are not liable for specifically, the Invoice No. 23-0188 and 23-0199 of RM 129,590.00 and RM 3,300.00 respectively [“Allegation 3”]. [hereinafter collectively referred to as “Defendants’ Allegations”]

To Defendants’ Allegations, the Court is in the opinion that they do not hold any water, do not show any triable issue and must be disregarded, as explained in the subsequent paragraphs.

This part of ground is to address the Allegation 3 that Plaintiff has directly dealt with a third-party company, SR EV (being the Defendant’s customer), and that, as a result of these dealings, the Defendants are not liable for Invoice No. 23-0188 and 23-0199, amounting to RM 129,590.00 and RM 3,300.00 respectively. The Court is in the opinion that SR EV is not relevant to the present claim because it is not privy to the contractual relationship between Plaintiff and Defendants.

In the present case, the invoices issued by Plaintiff to Defendants together with partial payments made by Defendants which are not disputed, collectively constituted a contract between Plaintiff and Defendants. Anyway, the contractual relationship between Plaintiff and Defendants are not disputed. D. PRIVITY OF CONTRACT 12

For instance, the High Court in Agromate (M) Sdn Bhd v Felcra Niaga Sdn Bhd [2022] 5 MLJ 501 held:-

Another instance, the High Court in Dan-Bunkering (Singapore) Pte Ltd v The Owners of The Ship or Vessel ‘Pdz Mewah’ (IMO No.: 9064009) of Port Klang & Anor [2020] MLJU 1574 held:-

On the issue of privity to contract, the High Court in Intan Permata Properties Sdn Bhd v Aejb Engineering (M) Sdn Bhd and another appeal [2020] MLJU 585 “[23] The authorities cited by counsel for plaintiff state that in a goods sold and delivered case, the invoices, delivery orders and statement of account collectively constitute the contract between the parties. In the case of Caltex Oil Malaysia Ltd v Classic Best Sdn Bhd & Ors [2007] 4 MLJ 772, Suriyadi J (later FCJ) said as follows about the importance of the transaction documents in a goods sold and delivered claim: [10] In coming to a decision in cases involving goods sold and delivered such as in this case, I would place due emphasis on the written documents, namely the statement of accounts, invoices, delivery orders, delivery notes and the debit notes. These documents would collectively constitute a contract reduced into writing. Suriyadi J also cited the goods sold and delivered case of Pernas Trading Sdn Bhd v Persatuan Peladang Bakti Melaka [1979] 2 MLJ 124 where Salleh Abas FJ (as he then was) said that the sales invoice and the delivery note is the contract that had been reduced to writing. “[120] In Perangsang Dagang Sdn Bhd the High Court stated that day to day documents will collectively constitute a binding contract as well as the fact that the parties have been transacting for years and the defendant making the payments. Failure to raise any objection as to the amount stated in the documents or imposition of interest despite the fact that the parties have been transacting for years will give rise to a situation of “non-query of account stated” which estops the defendant from subsequently raising any dispute that could have been raised earlier.” 13 upheld the principle of privity to contract and granted summary judgment to the plaintiff based on the following reasonings:- Ors v Schmidt [1968] 1 MLJ 170 on appeal from Malaysia, has now laid to rest any such doubts. … This decision lends support to the view that the doctrine of privity of contract is distinct from the rule that consideration must move from the promise. Therefore, following the decision of the Privy Council in Kepong’s case, though consideration may move from a third party under section 2(d) of the Contracts Act, the position in Malaysia is still that a third party, however, cannot enforce a contract: Kepong Prospecting Ltd & Ors v Schmidt, above; Oversea Chinese Banking Corporation Ltd v Woo Hing Brothers (M) Sdn Bhd [1992] 2 MLJ 86.” (see too, GPQ Sdn Bhd v Constant View Sdn Bhd[2017] 6 MLJ 728). [32] Similarly, in Construction Law in Malaysia, Sweet & Maxwell Asia 2012 by Datuk Sundra Rajoo and Ir Harbans Singh KS at p 190: “Furthermore, under the doctrine of privity of contract, there is no contractual link between the principal and the subcontractor and/or the contractor and the sub-subcontractor (see Kepong Prospecting Ltd v Schmidt [1968] 1 MLJ 170) unless falling within the exceptions permitted by law (see Lim Foo Yong & Sons Realty Sdn Bhd v Datuk Eric Taylor [1990] 1 MLJ 168 and also Shanklin Pier Ltd v Detel Products Ltd [1951] 2 AII ER 471).”.

Another example, the High Court in Inai Bina Sdn Bhd v Mohd Rizzal bin Shamat (t/a Kencana Sdn Bhd, third party) [2015] 11 MLJ 360, where the third-party appointed the defendant as a subcontractor for the construction and completion of a “[31] However, in so far as the domestic landscape is concerned, the doctrine of privity of contract is well entrenched. In the Law of Contract, Volume One, Third Edition, Lexis Nexis Butterworths, 2003, the learned author Dato’ Seri Visu Sinnadurai expounded at pp 155 – 157 that: “3.72 Privity of contract: applicability in Malaysia. It is a fundamental principle of common law that apart from special circumstances, for example in cases of agency, trust, assignment or statutory exception, a person not a party to a contract has no right to sue on a contract. It was doubtful formerly whether this rule was applicable in Malaysia because of the wide import of section 2(d). However, the Privy Council’s decision in Kepong Prospecting Ltd & 14 school. In turn, the defendant entered into a joint venture agreement (“JVA”) with the plaintiff to undertake the works wherein all proceeds from the contract would be shared between the defendant and the plaintiff. The works were completed, and a final interim certificate was issued by the third-party to the defendant certifying the final sum of RM300,000.00 payable to the defendant. The final interim certificate was accepted and endorsed by the defendant and the defendant received payment pursuant to the interim final certificate. As required by the contract, the defendant provided to the third-party a statutory declaration that there was no further sum due to the defendant. The plaintiff alleged that the defendant did not pay the plaintiff the sum of RM2,037,459.23 pursuant to the JVA for work done and thus commenced this action against the defendant. The defendant consequently commenced the third-party action against the third-party for indemnity. The defendant consequently commenced third-party action against the third-party for indemnity. The High Court recognized the principle of privity to contract and held as follows:- “

It was plain and obvious that the defendant failed to disclose a reasonable cause of action against the third party and the third party was accordingly entitled to have the third party notice struck out.

There was no privity of contract between the plaintiff and the third party. The parties had conducted themselves in an entirely independent manner and footing. From the perusal of the JVA, it was also clear there was no provision that the payment receivable by the defendant pursuant to the contract was subject to the agreement of the plaintiff contrary to that as asserted by the defendant. … In the circumstances, it is plain and obvious to me that the defendant’s claim for indemnity against the third party is frivolous and vexatious as well as an abuse of court process.

Further, the High Court in Double Acres Sdn Bhd v Tiarasetia Sdn Bhd [2000] MLJU 15 477 held as follows:-

Applying the above principles, here, SR EV is not a party to the contract (namely, the Invoices) between the parties, and not a party to the present action as of the date of filing this Application. Hence, SR EV is not bound by the contract between the parties and is not liable for any outstanding obligations under the said contract.

To sum up, the Allegation 3 is baseless and without merit and thus, not an issue which needs to be tried.

This part of ground is to address the Allegation 1 and Allegation 2 about the alleged discrepancy between Invoices and Confirmation Order and Invoice No. 23-0167 and “The arguments of the parties immediately put to the forefront the doctrine of privity of contract. Simply put, this doctrine means that only the original party to a contract may sue or be sued upon it. In other words, it is the original party that may enforce of be bound by the terms of the contract. While the doctrine of privity of contract denies the third party of any right, it also prevents the third party from being held liable under the contract to which the third party is not a party thereto. Lord Haldane L.C. in Dunlope Pneumatic Tyre Co Ltd v Selfridge & Co. Ltd (1915) A.C. 847, 853 in clear language approved the doctrine of privity of contract and this was what his Lordship said: “In the law of England certain principles are fundamental. One is that only a person who is a party to a contract can sue it. Our law knows nothing of a jus quaesitum tertio arising by way of contract. Such a right may be conferred by way of property, as for example, under a trust, but it cannot be conferred on a stranger to a contract as a right to enforce the contract in personam.” E. PRINCIPLE OF ESTOPPEL 16 the alleged dispute against the content of Invoice No. 23-0155.

Firstly, Defendants had never explained about the discrepancy or dispute against the Invoices and hence, these allegations are mere assertions.

Secondly, the Invoices were delivered to and received by Defendants and the same had never been disputed by Defendants at all material times prior to the present action. Each of the Invoice states that “any discrepancies regarding this invoice should be lodged within SEVEN (7) days” (see Enclosure 7, Page 11 to 19). Defendants failed to raise any dispute, challenges and/or queries as to any discrepancies in the Invoices before this.

Thirdly, the Allegation 1 and Allegation 2 were not pleaded in the Statement of Defence (Enclosure 9). These allegations were raised in their affidavits (Enclosures 12 and 13) for the first time and thus, are mere afterthoughts.

Fourthly, to the Invoices, Defendants had made a few partial payments amounting to RM761,413.00 which further shows Defendants’ admission and acknowledgement to the debt under the Invoices.

Therefore, Defendants are estopped from challenging or disputing the Invoices now through their own conduct and/or acquiescence. Defendants are prohibited under the law to approbate and reprobate.

For instance, the Federal Court in Boustead Trading (1985) Sdn Bhd v Arab- 17 Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 held that:-

Furthermore, the Federal Court case of Usima Sdn Bhd v Lee Hor Fong (trading under the name and style of Pembinaan LH Fong) [2017] 5 MLJ 273, held as follows:-

The High Court case of Eco Hijau Semula Sdn Bhd & Anor v Mohd Najeib bin be bound by the limitation. But it did nothing of the sort. It did not merely remain silent. It actually made payments on those very invoices without any protest. A reasonable man similarly circumstanced as the respondent would have been entitled to assume, as the respondent did, that the appellant was agreeable to the imposition of the 14-day limit. Influenced – and we use that term deliberately – by the conduct of the appellant, the respondent paid out on those very invoices. This the respondent would not have done had the appellant protested. The appellant’s attempt to raise this point some seven months later, well after the respondent had paid out its money to Chemitrade, must, in our judgment be classified as unconscionable and inequitable conduct. It ought not, therefore, to be permitted to question the validity of the indorsement.” “A close examination of the evidence shows that the instant appellant did not merely remain silent, as contended by counsel on its behalf. This is what actually happened. The appellant received from the respondent invoices of Chemitrade bearing upon them the rubber stamped indorsement specifying the 14-day limit for objections. Now, the appellant at that stage had a choice. It could have told the respondent that the 14-day limit was not part of the original arrangement, that this amounted to an abrogation of its rights and that it was not prepared to “[50] Further, in our view it is unconscionable on the part of Usima after having been paid by JKR (the employer) based on the interim certificates to now insist that there should be a ‘further’ re-measurement in respect of the work performed by LHF on its behalf as its subcontractor. Usima is estopped from doing so. The interim certificates were jointly measured by Usima and the superintending officer (‘SP1’) from JKR, the employer. Usima must have approved and agreed to the same before being paid by JKR on those certificates. It cannot now say otherwise. One cannot approbate and reprobate.” 18 Ahmad Walat (t/a sole proprietor under the name of ‘Triple A Aura Resources’) [2023] 11 MLJ 65, cited both the Federal Court cases of Boustead Trading (supra) as follows:- “ [38] This court decides that the defendant is estopped from denying the fact that the four LAs (7 November 2019) constituted agreements between the defendant and plaintiffs in respect of the two projects. Firstly, in the Federal Court case of Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 at p 333 – 334; [1995] 4 CLJ 283 at pp 294–295, Gopal Sri Ram JCA (as he then was) has decided that the doctrine of equitable estoppel has a wide application and may support a plaintiff ’s cause of action against a defendant. The estoppel doctrine is embodied in our s 115 of the EA which reads as follows: When one person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, otherwise than but for that belief he would have acted, neither he nor his representative in interest shall be allowed in any suit or proceeding between himself and that person or his representative in interest to deny the truth of that thing. (Emphasis added.) In the Federal Court case of Usima Sdn Bhd v Lee Hor Fong (trading under the name and style of Pembinaan LH Fong) [2017] 5 MLJ 273 at [50], Balia Yusof FCJ has invoked the equitable doctrine of estoppel in a dispute regarding a construction contract. The following conduct of the defendant, in my view, estops the defendant from disputing the fact that the four LAs (7 November 2019) constituted agreements between the defendant and plaintiffs regarding the two projects:

the defendant had issued four POs to the plaintiffs. The four POs were not withdrawn by the defendant at any time. Nor did the defendant allege that the four POs had been erroneously issued by the defendant;

the defendant did not deny the plaintiffs’ five invoices;

if there were no contracts between the plaintiffs and defendant, the defendant’s cheque (2 April 2020) would not had been issued in the first place; 19

Similarly, the High Court in Galvapole Industries Sdn Bhd v Yang Fong M&E Engineering Trading Sdn Bhd & Anor [2022] MLJU 2932 held as follows:- “ [33] As can be seen, the facts of this case are distinguishable from the facts in Maxprom Bina Sdn Bhd (supra) relied upon by the Defendants. There exists here overwhelming evidence that the 1st Defendant kept an inelegant silence and made part payments to boot, instead of raising the non-delivery issue immediately and/or dispute the amount claimed by the Plaintiff in its invoices and/or statement of account expeditiously and vigorously. Raising the same only after suit is filed, in this Court’s respectful view, is simply too late and smacks of an afterthought. As such, it is deemed that the 1st Defendant has accepted the amount claimed by the Plaintiff is correct and accurate. The 1st Defendant is therefore estopped from asserting that the amount claimed is not due. See: i. Boustead Trading Sdn Bhd-v-Arab-Malaysian Merchant Bank Berhad [1995] 3 MLJ 331; [1995] 4 CLJ 283 FC at pages 284 and 285, where the Federal Court held that: “[6] Justice of the present case clearly lies in favour of considering the estoppel issue. At the time it received the said invoices of Chemitrade bearing the indorsement specifying the 14- day limit for objection, the appellant had a choice. It could have told the respondent that the 14-day limit was not part of

the defendant communicated with SP3 regarding the two projects in WhatsApp messages (SP3/defendant);

the defendant would not have attended the three meetings (defendant/SP3) and would not have made the defendant’s second admission — please refer to the above sub-para 32(3)(c); and

the defendant did not deny the plaintiffs’ two demands (20 April 2020).” 20 the original arrangement, that it amounted to an abrogation of its rights and that it was not prepared to be bound by the limitation. But it did nothing of the sort. It did not however merely remain silent, for thereafter it actually made payments to those very invoices without any protest. [7] A reasonable man similarly circumstanced as the respondent would have been entitled to assume, as the respondent did, that the appellant was agreeable to the imposition of the 14- day limit. The respondent was clearly influenced by the conduct of the appellant when it paid Chemitrade for those very invoices, and this the respondent would not have done had the appellant protested. The appellant’s attempt to raise this point some seven months later, must be classified as unconscionable and inequitable conduct. It ought not therefore to be permitted to question the validity of the indorsement. [8] The appellant should be estopped from asserting that nothing was due on the impugned invoices. It was the appellant’s silence during the 14-day period that led the respondent to make the payment that was due to Chemitrade. The respondent was therefore entitled to assume that the invoices were good for payment. It would be most unjust for the appellant to now suggest that the respondent ought not to have paid on the disputed invoices. (Emphasis added)” ii. MP Factors Sdn Bhd v Suang Yan Projects Sdn Bhd & Ors [2007] 8 MLJ 602 [HC]: Page 613 “It is an undisputed fact that after being served with the notice to repurchase, the defendants did not at any time raise any protest that the amount demanded is incorrect or that no amount is due and payable to the plaintiff under the agreement. Thus, by the defendants’ silence they are estopped from now raising this challenge as the plaintiff was lulled into the belief that the defendants did not intend to challenge the existence of a demand to repurchase the debt, or the correctness of the amount owed by the defendants under the Factoring Agreement.” Page 615 21 “Each of the invoices also bear a clear statement that any objection to the bills or its items must be notified to them in writing within 14 days of its receipt, failing which the bills would be deemed final and conclusive against the main contractor. Consequently, these invoices are deemed good for payment as there was no objection from the main contractor within the stipulated period. More importantly, the plaintiff had acted to its detriment in releasing the initial payments to the first defendant based on the aforesaid invoices. The defendants ought now to be estopped from stating that they do not owe the plaintiff the sum claimed or any other sums (see Boustead Trading (1985) SdnBhd v Arab Malaysian Merchant Bank SdnBhd [1995] 3 MLJ 331; Hong Leong Leasing SdnBhd v Far East Knitting Sdn Bhd [1996] 2 MLJ 251; Chong Yoong Choy v UOL Factoring SdnBhd [1996] 2 CLJ 605). It is also of material bearing to note that the defendants failed to condescend upon any particulars as to the basis of their dispute on the sums claimed by the plaintiff. And, neither did they show in any manner, any manifest error on the face of the Certificate of Indebtedness. Hence, they are bound by the contents of the Certificate (see Chen Heng Ping &Ors v Intradagang Merchant Bankers (M) Bhd [1995] 2 MLJ 363).” (Emphasis added) iii. HTC GLOBAL SERVICES MSC SDN BHD v KOMPAKAR EBIZ SDN BHD [2008] 1 LNS 419 [HC]: “On each and every invoice in Exhibit “S-1” of Enclosure 8, there is a clear statement “Any discrepancies in the invoices should be informed to us within 7 days from the invoice date.” There was no protest after the invoices were issued and received by the defendant. See MP Factors Sdn Bhd v. Suangyan Projects Sdn Bhd & 3 Ors [2006] 1 LNS 358; [2007] 4 AMR 327 applying the Federal Court case of Boustead Trading (1985) Sdn Bhd v. Arab-Malaysian Merchant Bank SdnBhd [1995] 4 CLJ 283; [1995] 3 AMR 2871 per Gopal Sri Ram JCA co-opted at page 336: Each of the invoices also bear a clear statement that any objection to the bills or its items must be notified to them in writing within fourteen (14) days of its receipt, failing which the bills would be deemed final and conclusive against the main contractor. Consequently, these invoices are deemed good for 22 payment as there was no objection from the main contractor within the stipulated period. More importantly, the plaintiff had acted to its detriment in releasing the initial payments to the first defendant based on the aforesaid invoices. The defendants ought now to be estopped from stating that they do not owe the plaintiff the sum claimed or any other sums. … The law is clear. Where a party fails to raise any objection on the invoice of which they have been served relating to any contract it is to be estopped from denying that payment is due

In the High Court case of Sykt Tan Thian Siong Sdn Bhd v. Sykt Siaw Teck Hwa Realty & Development Sdn Bhd [1983] CLJ (Rep) 878 (refd), it was held that:-

Similarly, the High Court in YK Fung Securities Sdn Bhd v. Ronald Yeoh Kheng Hian [1989] 3 MLJ 490 decided that:- from them. See Syarikat Pakar Kayu dan Perdagangan Sdn Bhd v. Maa-sk Sdn Bhd [1986] CLJ 694; [1986] 1 CLJ 595; MP Factors Sdn Bhd v. Suangyan Projects Sdn Bhd & 3 Ors [2006] 1 LNS 358; [2007] 4 AMR 327. Similarly, with respect to the third contract which is oral in nature, it is the duty of the defendant to object to the invoices that had been issued and received by them and having failed to do so the same principle of estoppel will apply.” “The law is that in the event of non-query an account stated came into existence which creates an estoppel against the defendant from querying the accounts thereafter. There are situations, for example if there is fraud, when a query may be permitted but on the facts of this case, in my opinion, no such situation exists.” 23

It is trite that a party is not allowed to approbate and reprobate. The law is settled that when faced with a choice between two courses of conduct, a party is bound by the election of choice he makes, from which he cannot resile from. This is the principle adopted in the Court of Appeal of Fawziah Holdings Sdn Bhd v Metramac Corporation Sdn Bhd & Another Appeal [2006] 1 CLJ 996 and cited with approval in the High Court of Anthony Lawrence Bourke & Anor v CIMB Bank Bhd [2016]

Applying the above legal principles, the Defendants are estopped by their own conduct, admissions, acquiescence, and failure to object to or challenge the Invoices.

To sum up, Allegation 1 and Allegation 2 are without basis, not valid and/or not relevant because of the doctrine of estoppel, and do not constitute to any issue which needs to be tried.

Based on the above, the Court is in the opinion that the present action is a plain and obvious case for summary judgment.

In the High Court case of Seah Pei Yee v Hap Seng Star Sdn Bhd [2014] “...he was subsequently furnished with the relevant monthly statement of accounts to which he had no objections, protest or queries ” F. PLAIN AND OBVIOUS CASE FOR SUMMARY JUDGMENT 24 10 MLJ 881 it was held that the Court has the power to grant the plaintiff’s application for summary judgment in a plain and obvious case where the defendant has no defence to the plaintiff’s claim.

Another example, in the High Court case of Lembaga Kumpulan Wang Simpanan Pekerja v Mohd Abdul karim bin Abdullah & Ors [2024] 7 MLJ 566, it was held that:- “ [56] Guided by the principles to allow the summary judgment to the facts of this case, this court finds that there are no manifest errors made by the plaintiff and this is plain and obvious case with no issues to be tried, which would be suitable for judgment to be granted summarily. [57] Having evaluated the facts and law arising from this case, I have, in the foregoing, determined that the defendants have so plainly failed to raise any triable issue or reasonable defence. I additionally find that the arguments raised by the defendants to be entirely at variance from and not consistent with either the clear position in law or the undisputed contemporary documents. The resistance of the defendants is futile and must therefore fail. [58] It therefore follows that the defendants had no defence to the plaintiff ’s claim. For these reasons, I am satisfied that the plaintiff has established its claim vide this interlocutory application. [59] In view of the foregoing, it is my judgment that having evaluated the evidence, I allowed the application for summary judgment. [60] It is clear that the plaintiff has t satisfied the threshold requirement under O 14 of the Rules of Court 2012 to entitle it to a final judgment.” 25

The Court is in the opinion that the Defendants’ Allegations are mere assertions and bare denials unsupported by any documentary evidence and valid grounds, and in any event, an afterthought because:-

The Invoices were delivered to and received by the Defendants, and at all material times, Defendants had never raised any disputes regarding them;

From 26.10.2023 to 26.03.2024, Defendants made partial payments to Plaintiff, and these partial payments again, are not disputed;

Despite the exchange of letters between both parties’ solicitors, while acknowledging the debt owing to Plaintiff, Defendants had not challenged nor disputed the Invoices nor the Outstanding Amount;

In the Statement of Defence (Enclosure 9), Defendants had not raised any discrepancies nor challenged the content of the

The only dispute raised was regarding SR EV as mentioned in paragraph 12 above, but such dispute is baseless and irrelevant because SR EV is not a party to the contract between Plaintiff and Defendants, and not a party to the present action And by reasons mentioned above, this is a plain and obvious case for this Court to grant summary judgment. 26

It is trite that mere assertions lacking precision or is inconsistent with undisputed contemporary documents shall be rejected. For instance, the Federal Court judgment Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400 was followed by numerous Malaysian authorities such as the recent High Court case of Bank Pertanian Malaysia Bhd v Kilang Padi Bukit Kor Sdn Bhd & Ors [2024] MLJU 2578 which held that:-

Following the principles above, in the High Court case of CLLS Power System Sdn Bhd (No 2) v Sara Timur Sdn Bhd [2015] 11 MLJ 674, Mary Lim J (as her ladyship then was) found that the Defendant had failed to raise any issue meriting the trial on the ground that the sum claimed by the Plaintiff was indeed due and owing by the Defendant. This was a case eminently suitable for the entry of judgment summarily, and there was no need for the hearing of viva voce evidence in any of the respects raised by the Defendant.

Another instance, in the High Court case of PT Bank Maybank Syariah “where an assertion, denial or dispute is equivocal, or lacking precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable in itself, then such assertion or denial will be rejected, thereby rendering the issue not triable. In other words, leave to defend will not be granted based upon “mere assertions” by defendant; instead, the Court will look at the whole situation critically to examine whether the defence is credible.” 27 Indonesia v Mindo-Trade Sdn Bhd & Ors [2015] 8 MLJ 289, the High Court held that where all the issues are clear and the matter in substance can be decided once and for all without having to go through a full-blown trial, the matter ought to be resolved and decided in Summary Judgment Application. The Court should only exercise the power under the said order in very clear case.

To sum up, Defendants have not raised any issues that ought to be tried. The Defendants Allegations are mere assertions and bare denials unsubstantiated by any documents or valid grounds. For these reasons, this is a plain and obvious case in which leave should not be given to Defendants to defend Plaintiff’s claim and a summary judgment should be granted.

In conclusion, the Court allowed this Application (Enclosure 8) against the Defendant with costs of RM3,500.00. Bertarikh: 29 April 2025 (BADRUL MUNIR BIN MOHD HAMDY) HAKIM SESYEN MAHKAMAH SESYEN PETALING JAYA SELANGOR G.